Divorces Drag On Even After Reform

In 2010, New York became the last state in the country to pass a no-fault divorce law and eliminate the need for one partner to be held responsible for the end of the marriage.

Supporters said the law would do away with lengthy trials—reducing acrimony, containing costs and sparing people additional emotional pain. For most divorcing couples in New York, the law has worked as intended.

An Effort to Simplify

(7)The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

-- From New York state's no-fault divorce law

But as no-fault cases proceed through the courts, a handful of judges have interpreted the law differently, calling for trials to determine whether the marriage is "irretrievably broken."

As a result, couples divorcing in different counties have been held to different standards, with some still undergoing trials despite the reform effort.

"I think everybody acknowledges there is a problem and a conflict in the ruling as it stands," said Republican Assemblyman Brian Curran, a Long Island lawyer who has drafted new legislation that would ban jury trials in no-fault divorce cases. "It can't be left unanswered for different venues to determine their own rules. It has to be addressed."

Still, Mr. Curran's proposed revision has its own flaws, some lawyers said: It doesn't ban trials by judges. So even if it passes, it is unlikely to eliminate confusion, lawyers said.

"You have to be crystal clear on it," said Tina Soloski, a Clinton County matrimonial attorney who said she has worked on at least two no-fault cases where judges ordered trials. "Otherwise, I think it will continue to be tested and tested and bantered around and subject to inconsistencies throughout the state."

The no-fault law is just one of several pieces of legislation under review from a package of divorce reforms passed 2010. Another law imposing a mandatory formula for temporary alimony is being reviewed by an independent commission, with a report expected later this year.

Mr. Curran's proposed revision also doesn't address what some lawyers called a second problem with the no-fault law. The statute prevents judges from granting a divorce until financial and custody issues have been settled, leaving open the possibility that couples could spend years resolving those questions only to learn that the divorce is denied. That hasn't yet occurred, however.

Earlier this year, a Long Island judge concluded the first known trial of a contested no-fault divorce before granting the dissolution.

Gloria Sorrentino, now 79 years old, had waited for years for New York to pass a no-fault divorce law so she could avoid testifying in court, her lawyer said.

But Suffolk County Judge James Quinn ruled that her husband had the right to contest the claim. Ms. Sorrentino sat on the stand and answered a series of questions about how long it had been since she and her husband, Sebastian, had sex (at least five years), her husband's refusal to take her to the doctor or fix things around the house, his estrangement from their children, and their lack of mutual friends.

"A 79-year-old woman being on the witness stand for several hours is what I would call extreme," said her lawyer, Jennifer Goody.

Mr. Sorrentino's lawyer said his client believed that his wife had been manipulated by their children and wasn't in her right mind when she asked for a divorce.

"I don't think it was wrong to have a trial. I truly believe that," said attorney Lee Rubenstein. "The whole concept of fundamental due process allows you to have your day in court."

Ms. Goody said the law's wording is ambiguous. "I think it would be easier if the statute were a little clearer," she said.

Part of the problem, lawyers say, is that the Legislature didn't make clear the generally understood definition of no-fault divorce: If one spouse wants to dissolve the marriage, it should be dissolved.

Previously, the only way for couples to avoid assigning blame during their divorce was to live under a separation agreement for a year. While this remains an option, it works only if both spouses can agree on terms.

In the new law, legislators simply added a no-fault provision—the marriage is "irretrievably broken"—to the existing list of grounds for divorce. As a result, some argue, each ground listed in the statute should be subject to the same scrutiny. Since a defendant can challenge charges of adultery, for instance, claims that a marriage is broken should be no different.

Otherwise, "that's a fundamental violation of due process," said Timothy Tippins, an adjunct professor at Albany Law School.

Practically speaking, "in almost every case," the divorce would be granted, he said. And he expected very few trials. But he said: "I think there would be problems if you're leaving the court in a position of having to make a finding of fact, which is presumably based on evidence, and then saying only one side gets to be heard."

Others questioned the practicality of a trial based on such a subjective standard.

"It only takes one person to believe it's a broken marriage to have a broken marriage," said Madeline Marzano-Lesnevich, president of the New Jersey chapter of the American Academy of Matrimonial Lawyers.

Although New Jersey has also maintained other grounds for divorce, in addition to no-fault, Ms. Marzano-Lesnevich said she had never heard of a case where a no-fault claim was tested through a trial.

"I'm horrified to hear that's what's happening" in New York, she said.

In California, judges aren't allowed to ask what led to the breakdown of the marriage, said Thomas Simpson, the president of the Southern California chapter of the AAML. No-fault is the only type of divorce there.

"We're more sensible than New York," he said, laughing. "What a waste of the court's precious time to say, 'Well, gee, he doesn't clean up the bathroom, he leaves his socks laying all over the place.' 'No I don't!' It just seems sort of, I don't know. It doesn't seem very correct to me," he said.

Even in Wisconsin, where the law explicitly allows judges to hold inquiries into whether a marriage is truly broken in certain circumstances, lawyers said actual trials are unheard of.

"I've never seen a judge hold a court hearing to find irretrievable breakdown ever in my practice," said David Karp, president-elect of the Wisconsin chapter of the AAML.

In at least one New York case slated to be decided by a jury, the couple decided not to pursue the divorce before the trial started.

"My client didn't believe it was irretrievably broken, and I think to some extent the end result kind of shows that," said attorney Veronica Carrozza O'Dell, who represented the husband, Jeremiah Strack, in the case in Essex County, about five hours north of New York City in the Adirondacks.

"I can imagine a certain scenario where some people are just so fiercely private in their lives that they do not want to under any circumstances have to go into court," she said, adding that she had also seen spouses threaten a trial to intimidate their partners into dropping the divorce. "I have found in some circumstances people will reconcile for the wrong reasons."

Like Ms. Goody, she criticized the law's lack of clarity.

It is "better," she said, "but certainly not what any of us were hoping for."

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